*1 APPEALS OF 27 N.C.ApP-] COURT JOSIE PHILLIPS TICE v. WILLIAM HALL
No. 8212SC720 (Filed 1983) July 5
Physicians, Surgeons leaving § patient’s and Allied Professions 18— in body —departing from of care standard injuries by surgical sponge In an action to recover for caused a left inside by
plaintiffs cavity during surgery performed surgeon, abdominal defendant permit, compel, jury finding the evidence would a that the standard of practice among surgeons city experience similar question possible presence surgical was to conduct a for the search patient’s closing surgical in a before incision and defendant did not closing plaintiffs conduct search for incision but relied on a by employed by room nurses who were not defendant. 90-21.12. G.S. Judge dissenting. Becton Bowen, from plaintiff Judge. Judgment entered APPEAL February 1982 in County Superior Court. Heard CUMBERLAND May of Appeals Court 1983.
Plaintiff brought this medical action malpractice against damages defendant recover for injuries caused a surgical which was cavity left inside abdominal during surgery performed by defendant. evidence,
theAt conclusion of all trial judge granted defendant’s motion for directed verdict. Plaintiff appealed.
Clark, Shaw, Bartelt, Clark, Clark B. & Jerome Jr. and Dennis, Teague, Campbell, & W. Conely by John Campbell, for plaintiff.
Anderson, Anderson, Anderson, Broadfoot, Johnson & by Hal Broadfoot, W. for defendant.
WELLS, Judge. question we decide this case is whether plaintiff’s sufficient to raise a jury issue aon violation of the 90-21.12, of care standard incorporated G.S. which provides: In any action for damages injury personal death arising out of the furnishing or the failure furnish profes- *2 Hall
Tice v. medical, dental, of or other performance sional services care, for the payment not be liable the defendant shall health by the is satisfied the trier of facts damages unless of health that the care of such of the evidence weight greater of not in standards accordance provider care care profession members of the same health among or the same situated experience with similar and rise of act alleged giving at the time communities similar of action. to the cause and in the affirmative reverse question
We answer the of the trial court. judgment care of courts have held that standard appellate Our courts, law of our in G.S. 90-21.12 reflects the decisional
adopted 1, 259, Lockert, rev. 34 2d disc. App. v. 237 S.E. N.C. Thompson (1977), 593, denied, 264 a stand- imposes 293 239 S.E. 2d and N.C. Id. community known rule.” ard of care “same similar standard, testimony to Usually, to establish expert required violation, to such negligent show its show that negligent of of. injury was the cause proximate complained violation 50, (1978); Crowell, 287 see v. 38 N.C. 247 S.E. 2d Ballenger App. (1980). 329, Pate, 407 also v. 49 N.C. 271 S.E. 2d App. Tripp in this must be reviewed accordance The evidence case with well-established and rules to motions recognized applicable for a directed verdict. A motion a defendant for directed verdict under 50(a) 1A-1,
G.S.
Rule
the Rules Civil Procedure tests
sufficiency
jury
of the
the case to the
legal
evidence
take
motion,
support
plaintiff.
a verdict for the
On such a
must
taken as
evidence
be
true
considered
favorable to the
light
plaintiff, giving plaintiff
most
every
inference
drawn therefrom.
benefit
reasonable
to be
A directed verdict
the defendant is not
allowed
properly
it
as a
recovery
unless
matter of law that a
cannot
appears
any
had
view
plaintiff upon
be
of the facts which
reasonably
v. Per
Manganello
tends
establish.
mastone, Inc.,
666,
(1977);
291
231 S.E.
678
N.C.
2d
Everhart
LeBrun,
(1981).
139,
If,
v.
52
277
816
App.
N.C.
S.E. 2d
when
viewed,
so
the evidence is such that reasonable minds could
recover,
as to
differ
whether the
plaintiff is entitled
COURT OF APPEALS
29
directed verdict should not be
and the case
granted
go
should
583,
Cleaners,
jury.
to the
Insurance Co. v.
285
206 S.E.
N.C.
(1974).
2d 210
On such a motion made at the close of all the
evidence, any of defendant’s evidence which tends to contra
considered,
dict or refute plaintiff’s evidence is not to be
the plaintiff is entitled to the benefit of defendant’s evidence
Co.,
which is favorable to plaintiff, Overman v. Products
516,
(1976),
N.C.
227 S.E.
App.
2d 159
or which tends to
case,
clarify plaintiff’s
Home Products
v.
Corp.
774,
Motor
Inc.,
Freight,
App.
N.C.
S.E. 2d
disc. review
(1980).
denied,
300 N.C.
Hunt v. Montgomery
App.
N.C.
Plaintiff testified that she was a resident of Cumberland County, where she has years. resided for about 30 8On 1976, September defendant William Hall performed surgery on plaintiff Valley at Fear Cape Hospital repair a hiatal hernia. doctor, Plaintiff had been referred Dr. family Hall her Dr. Izurieta. her Following surgery, plaintiff remained in the hospital days. about 17 After plaintiff’s surgery, plaintiff visited Dr. occasions, Hall in Fayetteville his office in on a number of com- plaining of pain and discomfort in the area of her where the surgery was Dr. performed. gave Hall plaintiff various responses discomfort, as to the cause of her but provided no specific 1977, treatments. Plaintiff visited Dr. Izurieta frequently during 1978, and of complaining pain and discomfort. In September 1979, Dr. Izurieta arranged for a radiological examination plain- of tiff. The examination a surgical disclosed in plaintiff’s body. defendant, Plaintiff received a call from telephone who was v. Hall
Tice Oklahoma, Tulsa, plaintiff saying defendant residing in then Dr. Izurieta men- that when Dr. called him and Izurieta had (defendant) name, happened,” knew “what he plaintiff’s tioned “left in- a was surgery, did that when defendant circumstances, underwent plaintiff a As result side.” Newman, M.D., 1979. Dr. on November by Harold surgery sponge. removed the Newman doctor, practic-
Dr. testified that he was medical Newman He as an Fayetteville recognized 1964. was surgery in since ing was, summary, testimony Dr. witness. Newman’s expert when Dr. Fayetteville surgery Dr. was practicing follows. Hall 1964; they practiced together, began practicing Newman Dr. knew the train- in 1976. Newman practicing together were not Hall; Dr. was experience such ing experience November he performed to Dr. Newman’s. On 20 similar “foreign to remove a substance” disclosed plaintiff x-ray. involving plaintiff’s He a mass of tissue near found near where a hiatal hernia would take the site spleen, removed Dr. Newman included the remains tissue place. would plaintiff It ex- surgical sponge. expectable of the “within her.” presence discomfort from perience during surgical use of the standard of as to On Dr. testified: Newman procedures, *4 my
It is in with standards of to make a practice accordance the in an systematic operation. search before incision with of to find my It is accordance standards before a It was also in sewing up patient. remove all sponges my in 1976. was no purpose accordance with standards There in Mrs. by leaving to be served Tice in connection sponge with her hiatal hernia. cross-examination, Dr. the use
On Newman testified as to of follows: sponges surgical procedures as is that the course during operation conceivable of an the [I]t surgeon could run out If it sponges. happen. hap- It does (a the circulator who is pens hospital personnel, the nurse nurse) they what call a sterile the gets sponges. additional She is on staff of the hospital. the I as I When come into the room for operating Tice, in the I already did case of Mrs. are there. sponges they sup- did not count them before came out of the sterile room, tradition, When I ply. go operating by into I know many how are I do not them. is a there. count There traditional number that is on each put lap pack.
are first counted the operation starts. The instrument They nurse the circulator nurse count them. frequently do count in They unison. write the count down on pad or a note. It is of as the count. are spoken There kept operating *5 count, ready is for the third closure. After the the sponge again they nurse indicates that have sponge a correct count layer and the third is then closed. The next is the skin. There is sponge no count that. are related to There sponge three counts two employ nurses the of the hos- is some- the unless there terminates matter that
pital and something wrong. or thing missing reported if the nurse peritoneum I never closed have the second same as to applied count. If the has an incorrect fascia, layer. . . . to the third layer, applies the same the I do ready to not peritoneum, I close getting When am I . . . When count. sponge with the nurses participate level, out I do coming altogether, the third come to those and that participate not contact physically with those sponges. I have no involvement or contact count. to me that given person When count sponge ready I the per- when am to close it at fascia gives itoneum, rely I come to the fascia in up I on that count. When ready close the human that getting the level of and they I tell the nurses and do sponge count and Yes, I rely sponge me. I on that count. When report it to ready to close and getting come the second and third level I ready am the nurses make a sponge announce that If they it back to me. count is report sponge and report rely any on count. in that three- point correct that If at out, or speak, reports so to a nurse a counter pronged coming count, I not they do not a correct do close. have they If the recount to make again count is correct they they sure If turn the error counting correctly. up are If they go they forward. don’t turn the error stop up they looking sponge. dropped start for a could have One instruments, one stuck floor or could be under some some of the “field,” no are off of longer are used taken they usually speak,
so to can be—there is some kind arrangement, —two could be stuck to- They could tucked down gether. be under one of the drapings sheet or drapery. sheets or like have Something happened. that could recovery have never sent a patient back room incorrect. The knowing standards my among surgeons background, care and ex- perience in similar under circumstances similar conditions at Valley Cape Fear in an like we Hospital *6 COURT OF APPEALS about, are talking permitted operating surgeon rely on sponge given to them the nurses as correct. He rely would on that count. As a matter of fact in operation I which did on Tice in Mrs. 1979 to remove the I sponge, relied on the sponge count that the counting did at people that time. The that was made at that time is the type that we have just indicated a few ago. minutes
It is not uncommon to miss A sponge. is not too difficult to lose within the body. cavities of the human They material, can be misplaced fairly easily. Being a gauze type they can and do assume the that is in makeup there and the mixture of the They fluids and so on. assume the coloration that, By of those fluids. virtue of they can become camou- flaged and that they is one of the reasons can be missed procedure.
Yes, during the manipulation the sponges can itself, be shifted around and during hiatal hernia surgery necessary it is to make some shifts in the organs within the fact, cavity. In the stomach itself is shifted.
Yes, I learned before I did the 1979 operation on Mrs. Tice that the had been to Dr. reported Hall in 1976 as correct and made my a note of that in record. It is my recollection that I was told the sponge count on the previous operation correct. examination,
On re-direct Dr. Newman testified: Yes, I testified earlier that in my accordance with stand- ard of I systematic conducted search and, within patient before I sewed them up accordance my standard of practice, do a search for all sponges before sewing up the patient. do that notwithstanding the count. evidence, At the close of the trial court reserved judgment defendant’s motion for a directed verdict. Dr. Hall standards, testified on his own behalf as to surgical practice, and procedures, in pertinent part, as follows:
The average incision is five to six inches in It length. all goes way down layers the four through of the abdomi- Hall
Tice v. you put particular stage At that nal wall. *7 retractors, lined those retractors are surgical and surgical will they damage patient’s so the with that sponges stainless The are made of skin and muscles. retractors tender cavity you put sponges the with You line entire steel. as much possible. in to the abdomen as open up the retractor from skin and muscles to the tender protect patient’s This is I mentioned used just the steel. The are sponges stainless They to used surgery. the abdominal are purposes other you to in after this put line retractors that also have other in. You will a retrac- put retractor has been have particular way they the also tor hold the liver over and out of and in to the put then are in to hold sponges line that retractor and another, side, to the down to one the liver intestines stomach So, in every there direc- diaphragm up. sponges and the are tion. underway you after have operation gets got
As the and time, visualized, which takes a fair amount of everything to that sponges up irrigating then the are used soak solutions they you use are used to patient’s would within serum, know, you soak and that has as up blood accumulated they also part operation against organs of the and are used to ooze because the nice warm laid begin against will organ oozing stop. an sometimes the help is sponges adjacent take the coloration of whatever way them in fluid or I of the blood or solutions. irrigating maybe fifty am there are where sure records hundred and I say have been used but would hiatal sponges average maybe thirty hernia sponges. absolutely visibility
You have no once the has incision made, because, out, I brought been is on the hernia so, the patient up back side of and underneath ribs you visibility. have to off develop put sponges pack You liver to left and to the stomach to the and the right intestines below diaphragm and the above. These sponges They come from room nurses. are in there operating put by the entire team meaning first assistant puts sponges in, the surgeon puts sponges also first assistant Every- second assistant would also putting sponges be in. body takes out. The nurse sponges scrub also handles COURT OF them to the first assistant. The handing sponges are counted before the is to the patient brought operating They room. are counted team nursing dele- gated for that responsibility particular part surgical procedure.
The nursing Valley team is Fear employed Cape Hospital. any do not engage sponge counting at the time the sponges brought are into the operating room. When come into the room to do I. do not many know how ished, are there. As is fin- nurses, count, the two designated make the meaning nurse circulating and the scrub nurse. *8 IOnce have patient examined the inside and looked at all the to organs make sure there is no foreign body within I say that I patient, ready am to close the patient, say
this to the circulating nurse. She puts part the opera- tion in whereby motion gets she with the scrub nurse and they leave me completely and she takes the in sponge count unison with usually scrub nurse. That is my done behind back or else in one area of the operating room that the operation is not going on so it will not surgeons. disturb the While count, people those are in engaged am in the process of getting proper suture to close the peritoneum, layer which is the first cavity of the abdominal lining and at the same time conversation having between the in anesthetist this bringing patient very out of this deep state of consciousness back to life.
Q. Hall, you Dr. do have an opinion, as a medical expert practicing Fayetteville area in September of 1976, as to whether or not the standards of care at prevailing that time among general surgeons, a similar back- having here, ground and a similar amount of in practicing permitted general surgeon to close a patient upon receiving all, a correct sponge you count? First of do have such an opin- ion?
A. Yes.
Q. What is that opinion? you function with only procedure
A. that can That is the It has to be carried out. patient. Hall, Q. not, day 8th Dr. on the whether or State your to you begin when September, preparatory Tice, you rely on the sponge of Mrs. did closing the fascia you at time? to reported A. Yes. I did.
Q. you to rely on at you reported Did reaching the time of fascia?
IA. did.
Q. you rely on at you reported Did reaching the time of the subcutaneous tissue?
A. Yes.
Q.
not,
Hall,
Dr.
state whether or
the standard of
And
discussed,
just
your
care
at that
time we’ve
prevailing
you
rely on
medical
opinion
expert, permits
as a
you?
reported
count then
A.
That
the entire United States.
goes throughout
Yes.
every
procedure
place. (Emphasis supplied.)
That is the same
persuaded
We are
this case would per-
*9
mit,
not
the
of
jury
practice
a
to find that
standard
compel,
Fayette-
in
among surgeons
with similar
and experience
was to
search
of
possible
ville
conduct a
for the
presence
surgical
body
in a
sponges
patient’s
closing
surgical
before
a
incision.
contends
the
strongly
Defendant
evidence shows that
the
of
in such
for
to
practice
procedures
surgeon
rely
standard
is
the
nurses,
by
on the
sponge
provided
persons
room
by
the
such
employed
surgeon.
certainly
While
evidence is
of
the
of facts
capable
persuading
trier
toward defendant’s posi-
tion,
testimony
the
of both Dr. Newman
Dr. Hall was
they followed
of
a
practice
conducting
the
search or
looking
(or
bodies)
the
foreign
closing, allowing
jury
before
to
find that the
the
provided
nurses is but
of
one
the
on
practices relied
to avoid the risk of
a
surgeons
leaving
in the incision.
of the standard
of
violation
question
negligent
On
evidence,
rely
to
on the
by is entitled
plaintiff
established
courts have consistent
appellate
of res
Our
ipsa loquitur.
doctrine
dur
ly
foreign object
patient’s
held that the
of a
a
leaving
evidence of
ing
surgical procedure
negligence.
a
is
itself some
(1957);
363,
v.
In cases such as we deem it to once appropriate emphasize procedural point directed verdict is a close granting question
[w]here one, the better is for the to reserve his judge trial on motion decision and allow the case be submitted jury If the returns a verdict in favor of the jury. moving necessary no motion an party, appeal decision may be If the finds for the jury nonmoving party, avoided. judge may judgment reconsider the motion and enter a 1A-1, 50(b), notwithstanding pro- the verdict under G.S. Rule he ap- vided is convinced the evidence was insufficient. On if the motion peal, proves improperly granted, have been entry appellate option ordering court then has the verdict, thereby on the judgment eliminating expense delay involved in retrial. Permastone, Inc., v. Koonce v. Manganello supra; May, supra. stated, For the reasons we hold that the trial court erred defendant’s motion for a directed verdict and that there granting must be a new trial.
Reversed and remanded.
Judge BECTONdissents.
38 Ingram Ins. Co. v. American Nat’l EAGLES concurs. Judge dissenting.
Judge BECTON
to the appropriate
not hesitated to hold doctors
While have
established,
clearly
has been
standard of care when that standard
(1981);
46,
Piver,
S.E. 2d 876
v.
53
279
App.
see Howard
N.C.
68,
259,
Skull,
disc.
pet.
58
293 S.E. 2d
App.
Powell v.
N.C.
for
(1981);
743,
denied,
v.
Hyder
306
Because rely provided by on the counts surgeon Dr. Hall sub room nurses and that did that case correctly judice, granted believe the trial court the defendant’s motion for a directed verdict. COMPANY, NATIONAL
AMERICAN INSURANCE v. Petitioner-Plaintiff INGRAM, INSURANCE, JOHN RANDOLPH COMMISSIONER OF STATE Respondent-Defendant CAROLINA, OF NORTH No. 8210SC232 (Filed 1983) July regulation statutory § exceeding 1— Insurance insurance —Commissioner not au- thority statutory authority by The Insurance Commissioner did exceed his promulgating conjunction required optionally a rule in with G.S. 58-251.2that hospitalization policies renewable and accident and health insurance to be ter- granted company. regulation minated before a rate increase could be to a required policy option given termination of a under the old rate with an to the policy replace policy coverage approved holder to his with the same at the in- regulation applied creased rate. The the Insurance Commissioner is con- legislative sistent with the required intent of G.S. 58-251.2.The termination of notes room the nurses. . . . The next just usual count is done prior to starting the closure of the wound. was so in This and 1979 Mrs. At surgeries Tice. that point basically is over with. At I point ready up. that am to close layer The most lin- inner is called the It is a peritoneum. of the ing cavity. abdominal That is the first is thing closed. The first count is peritoneum taken before the is you closed. As soon let room circulator know you ready are complete operation, pro- she then ceeds with the sponge you count. She tells the count cor- is says, ready rect. The “I surgeon am to close.” It is then she “I proceeds says, this count. She have a correct count,” to that effect. At that something point peritoneum is closed. The next is to ... step layer. close next At that point, usually there is another assisted the instru- nurse, ment there are two of them it. After doing making fascia, Newman, she “Dr. says have another correct count.” close the fascia at that There is a point. layer just third which is of or front anterior the fascia. layer we get When third there another sponge the instrument nurse the circulator nurse to- gether. This is done after surgeon has announced that he